People v. Dinan

• Decision Date: 07 February 1958
• Citation: 172 N.Y.S.2d 496,15 Misc.2d 211
• Parties: The PEOPLE of The State of New York, v. Floyd DINAN, Milton Poplees, Frank Castellucci, Frank Poplees a/k/a Frank Day and Albert Bricker, Defendants.
• Court: New York County Court

Page 496

172 N.Y.S.2d 496

15 Misc.2d 211

The PEOPLE of The State of New York, v. Floyd DINAN, Milton Poplees, Frank Castellucci, Frank Poplees a/k/a Frank Day and Albert Bricker, Defendants.

Westchester County Court.

Feb. 7, 1958.

Joseph F. Gagliardi, Dist. Atty., White Plains, for the People, Leonard Rubenfeld, Asst. Dist. Atty., Peekskill, of counsel.

Cribari, Scapolito & Solinger, Mt. Vernon, for defendants, W. E. Cribari, Mt. Vernon, of counsel.

HUGH S. COYLE, Judge.

Defendants Floyd Dinan, Milton Poplees, Frank Castellucci and Albert Bricker were indicted by the Grand Jury of Westchester County for several alleged violations of Sections 974 and 986 of the Penal Law of the State of New York (bookmaking). The above named defendants and defendant Frank Poplees, also known as Frank Day, were, in addition, indicted for violation of Section 580 of the Penal Law (conspiracy to violate said statutes). All of the above charges are misdemeanors.

Defendants move for inspection of the Grand Jury minutes or in the alternative for examination of said minutes by the Court and for dismissal of the indictments. The present motion is made on the authority of the recent decision of the United States Supreme Court in Benanti v. U. S., 355 U.S. 96, 78 S.Ct. 155, 157, 2 L.Ed.2d 126. The Court there held that evidence obtained by State officials under a State statute was barred by Section 605 of the Federal Communications Act, 47 U.S.C.A. § 605 in a prosecution in a Federal Court.

The record in the case here shows and the prosecution concedes that the evidence presented to the Grand Jury and used to obtain the indictments was based upon recordings obtained pursuant to 'wire tap' orders issued under Section 813-a of the Code of Criminal Procedure.

The question presented is a serious one which has a real and substantial bearing upon procedures to be followed in the future by law enforcement officers and agencies in investigation of and the prosecution for violations of our Penal Laws.

Over the years the methods and practices of criminal procedure have been developing in a pattern to supply greater protection to the rights and liberties of individuals accused of crime. Intermittently there have been serious retrogressions and abuses of the rights of those accused of crime, but that the general philosophy in the administration of criminal law is in favor of greater protection of the rights of the accused is plainly manifest.

In the determination of the Benanti case the court construed Section 605 of the Federal Communications Act, the pertinent portion of which was quoted as follows:

'* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.'

Our highest court in the Benanti case discussed its own decisions in the two Nardone cases (Nardone v. U. S.), 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, and 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, and in Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, and observed that the Benanti case containing elements of the three above cases, '* * * forces a choice between the different results reached'. The Court then chose to rest its decision squarely on Section 605 of the Federal Communications Act and the public policy underlying it, and not on Constitutional grounds.

There are numerous decisions in our Court of Appeals on the question of the right to receive evidence obtained under 'wire tap' statutes and that Court has consistently and repeatedly upheld State Legislation and law enforcement officers operating thereunder in the administration of the criminal law.

The Schwartz case referred to above...